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Lloyd Gumbo Senior Reporter
The ruling by the Constitutional Court to jail Prosecutor-General Johannes Tomana for his reluctance to issue private prosecution certificates to complainants whose cases are declined by the National Prosecuting Authority bears testimony to the rule of law in Zimbabwe.
There may be contradictions in the supreme law- the Constitution – but there is no contradiction as to the duty of the Constitutional Court, which is to interpret the law. What comes out loud and clear is that no one is above the law in the country whether we like it or not.
Private prosecutions in jurisdictions where they are allowed are found to be an effective way in terms of cost and time when complainants are victims of criminal acts notwithstanding the fact that investing resources in investigating cases privately may be relatively expensive.
It is, however, important to note that some private prosecutions may actually interfere with other criminal cases.
Coming back home, the ruling by the Constitutional Court must be looked at in a much broader sense beyond Tomana and Jane Mutasa.
Whether we like it or not, at the moment, the Prosecutor-General cannot hide behind the fact that the Criminal Procedure and Evidence Amendment Bill that seeks to give his office the discretion to issue private prosecution certificates is before Parliament.
The Bill is not yet law, as such one cannot comprehend how the learned Prosecutor-General could even submit that argument before the Constitutional Court when he knew for a fact that the courts do not interpret a Bill but the law that has been filed with the courts after the mandatory Presidential assent.
In all fairness, the Constitutional Court had a very difficult position to rule in his favour given his main argument.
But when all has been said and done, one has to look at the implications of the ruling to appreciate what the country is subjecting itself to, at least until the Criminal Procedure and Evidence Amendment Bill is signed into law by President Mugabe.
The National Assembly has already done its part and the Bill is now before the Senate and if it passes that House, it will be sent to the President for his assent.
Meanwhile, opposition parties, their cousins in civil society and their founders and funders from the West, will take the ruling as a breakthrough in their quest to expose the revolutionary Zanu-PF.
So the Zimbabwe Lawyers for Human Rights who were appointed as a friend of the court but whose aversion for the ruling party is well documented will take this as a milestone after effortlessly managing to convince the Constitutional Court that the Prosecutor-General had no case at all.
It is a fact that ZLHR is a pathological critic of everything that Zanu-PF does, as such this goes down as a landmark victory against the ruling party.
This even gives them the zeal to go for another uppercut on the ruling party in general and the Government in particular.
Of course, the ruling party will find the blows unbearable but just watch this space as things unfold.
It will not be too long before they start thronging the PG’s Office and subsequently the Constitutional Court when he declines to issue the certificates.
So until President Mugabe signs the Criminal Procedure and Evidence Amendment Bill that is not yet before him, the Prosecutor-General’s Office must brace itself for a flurry of applications for private prosecutions that are not necessarily meant to be won but just for political grandstanding.
The applications will be flying from both opposition political parties and civil society.
All these organisations in their various forms want is the world to know that they are taking Zanu-PF head-on as they apply for private prosecution certificates against Zanu-PF and Government officials for alleged crimes that would not stand the test of litigation in any court on any day.
Knowing that the Prosecutor-General’s Office will not prosecute vexatious cases, the same organisations will then approach the superior courts to force compliance.
And all that is the drama that they want to unfold.
Again, they will not be interested in the outcome of their Constitutional Court applications but just want the world to know that they are putting President Mugabe’s administration under intense pressure.
This will earn them money which is what they actually stand for.
Opposition political parties and the anti-Government civil society organisations have been vocal in accusing the Zanu-PF Government of human rights abuses that date back to the 1980s.
Remember during the constitution-making process, they wanted the Zimbabwe Human Rights Commission to investigate alleged human rights abuses from 1980.
Again, the same organisations are the ones that called for the imposition of illegal sanctions on Zimbabwe on allegations of human rights abuses since the turn of the millennium.
Their common thrust has always been to corner the Zanu-PF Government, so the latest ruling will likely re-ignite their interest to press the revolutionary party and all its arms.
For that reason, the same organisations, including the Zimbabwe Lawyers for Human Rights, are likely to throng the Prosecutor-General’s Office applying for private prosecution certificates against Zanu-PF and Government of- ficials.
To them, it’s not the validity of the cases that matters but just the grandstanding that will see them smile all the way to the banks to reap the benefits for their efforts in embarrassing the ruling party and its officials.
It is a given that the West will pour in lots of money in supporting this cause.
It is, therefore, in this context that the ruling on the Prosecutor-General by the Constitutional Court must be looked at holistically than focus solely on Mr Tomana and Madam Mutasa.
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